The Canadian Judicial Council (CJC) is appealing an important jurisdictional decision in which the presiding Federal Court judge accuses the leadership of the council of 39 chief justices of disrespecting his court and making poor litigation choices, and also “questions” whether CJC responses to queries from The Lawyer’s Daily amounted to “pressuring” federal Justice Minister Jody Wilson-Raybould to fire a Quebec judge “without regard for the judicial [review] proceedings that are legitimately before this [Federal] Court.” (Please see Editors’ Note below.)

Asked if, and on what basis, it plans to appeal, the judicial council, which oversees the conduct of Canada’s 1,176 federally appointed trial and appellate judges, confirmed Sept. 5 it will be filing “in the coming days” a notice of appeal of the preliminary jurisdictional ruling by Federal Court Justice Simon Noël, whose Aug. 29 decision came in a judicial review proceeding launched by suspended Quebec Superior Court Justice Michel Girouard: Girouard v. A.G. Canada 2018 FC 865.

Norman Sabourin, the CJC’s executive director and senior general counsel, told The Lawyer’s Daily the bases for the council’s decision to appeal include what the CJC believes are legal errors Justice Noël made in respect of the council’s constitutional arguments and Parliament’s authority to remove a judge from office, and an “appearance of bias on the part of the judge.”

Asked for specifics, the council indicated its outside lawyers were still drafting the notice of appeal, which could be filed as soon as Sept. 7.

“The key question, for the CJC, is not whether judges should make the final decisions in respect of recommending the removal of a judge,” Sabourin explained via e-mail. “The question is which judges have this constitutional authority,” he said, alluding to the debate over whether it is the Federal Court and, on appeal, the Federal Court of Appeal and Supreme Court of Canada, which have the last word, or whether it is the council of 39 chief justices of the country’s superior trial and appellate courts which plays that constitutional role.

Sabourin called Justice Noël’s reasons for judgment with respect to the Federal Court’s jurisdiction “an exhaustively reasoned decision and that’s, I think, very helpful to advance the debate.”

He noted the CJC has publicly commented on the jurisdictional question, in response to media queries, because “Canadians are entitled to know why the CJC is pressing this issue before the courts.”

He added that the judicial council continues to press the federal government “to move forward” with introducing necessary legislative reforms to the judicial discipline regime “to ensure a fair and efficient process of review in future.”

Justice Simon Noël

Last month’s ruling by Justice Noël, a respected senior puisne judge at the Federal Court, holds that the CJC’s disciplinary proceedings and decisions are subject to judicial review for procedural fairness by the Federal Court — a contentious issue with constitutional dimensions, as recognized by Justice Noël who predicted “my findings will be analyzed on appellate review.”

Following a painstaking analysis, Justice Noël’s 110-page decision rejects, as having “no basis,” all the arguments put forward by the federal disciplinary body chaired by Supreme Court of Canada Chief Justice Richard Wagner (notably, the council says that the chair of its judicial conduct committee directs litigation and instructs counsel, not the chief justice of Canada.)

Arguments rejected by Justice Noël included the council’s contention that the CJC is not subject to judicial review by the Federal Court because the Judges Act deems the CJC and its formal inquiry committees to be a superior court (which thus does not qualify as a “board” or” “tribunal” subject to Federal Court review), and that the CJC has its own “robust” internal review mechanism which ensures procedural fairness to judges accused of misconduct. Nor did he accept that judicial review of the CJC’s disciplinary proceedings would interfere with judicial independence. “On the contrary, I am of the view that the possibility of review by a judge only increases judicial independence by preventing interference from the other branches of government. It is the judicial rather than the executive power that is in the forefront of judicial review,” he said.

He added, “the CJC claims that it is impossible for a mere Federal Court judge to review the reports and recommendations of the CJC, which is composed of chief justices. With respect for the honourable chief justices, this is what Parliament intended. Nobody is above the law or immune from error and, aside from the Supreme Court, there is no judicial or quasi-judicial institution that has the final word without the possibility of an appeal or some other remedy.”

Justice Noël agreed with the CJC that its recommendation to the federal justice minister that a judge should be removed on joint address to Parliament because he or she is unfit for the bench, amounts to “capital punishment” for a judicial career — with possible “devastating” impacts on the judge and his or her family.

“It is inconceivable that a single body, with no independent supervision and beyond the reach of all judicial review, may decide a person’s fate on its own,” he held.

“However prestigious and experienced a body may be, it is not immune from human error and may commit a major violation of the principles of procedural fairness that only an external tribunal, such as the Federal Court in this case, can remedy,” the judge reasoned. “Therefore, as per the fundamental principles of our democracy, all those who exercise public power, regardless of their status or the importance of their titles, must be subject to independent review and held accountable as appropriate. This goes for the CJC and the chief justices who make up its membership.”

Gérald R. Tremblay, McCarthy Tétrault

Justice Girouard’s co-counsel, Gérald R. Tremblay of Montreal’s McCarthy Tétrault, told The Lawyer’s Daily by e-mail he did not wish to comment on the judgment, given the current proceedings.

The CJC challenged the Federal Court’s jurisdiction to judicially review the council’s actions in the context of Justice Girouard’s ongoing judicial review application and its ancillary requirement that the CJC produce its decision record and other relevant documents. Justice Noël dismissed the council’s motions to strike the judicial review applications and to stay the proceedings for lack of jurisdiction, and ordered certain documents and lists of documents to be filed with the court within 20 days, emphasizing that Justice Girouard’s judicial review applications should heard “as soon as possible.”

Justice Girouard, who has been, in essence, suspended with pay for more than five years, contends that the council behaved unfairly toward him during the course of successive formal inquiries that considered whether he took cocaine as a lawyer and whether he was truthful in denying that allegation. See: “Tremblay sees Girouard matter as having run its course already” from The Lawyers Weeklyhere.

The second inquiry culminated last February in a recommendation from 20 of 23 chief justices to Wilson-Raybould that Justice Girouard should be removed because he lacks the integrity and credibility to keep his post, having misled the council about a suspicious-looking transaction captured on security video that looked like he might have been buying an illegal substance (which the judge has always denied, and which has never been proven). Three chief justices dissented, arguing the discipline case against the judge should be abandoned because he was denied procedural fairness as not all the transcripts and records of the French-language inquiry below, that recommended his removal, were translated into English for the 23 chief justices who made the council’s decision, many of whom do not understand French.

Justice Noël’s judgment that the Federal Court does have jurisdiction to judicially review the CJC endorsed, and built on, the 2014 reasoning and ruling on the same issue by Federal Court Justice Richard Mosley. He rejected similar arguments made by the CJC in the judicial discipline case of former Manitoba Queen’s Bench Family Division Associate Chief Justice Lori Douglas — but an appeal from his decision was discontinued because the case settled.

The CJC has argued that in exercising its constitutional responsibility to oversee judicial conduct, it is not interpreting a law of Canada reviewable by the Federal Court, but rather is interpreting a constitutional issue as to whether a judge should be removed from office. An appeal of the jurisdictional issue will create interesting dynamics at the Federal Court of Appeal (led by Chief Justice Marc Noël, Justice Noël’s brother) and potentially (if it is further appealed) at the Supreme Court of Canada whose bench, in addition to Chief Justice Wagner, includes Tremblay’s spouse, Justice Suzanne Côté (however, none of these judges is expected to sit on the case).

Moreover, whether or not Justice Noël’s decision survives as a legal precedent over the long haul, his “comments” section included at the end of his reasons for judgment (paras. 173 to 185), along with the “preliminary remarks” he made orally in open court just before the lawyers started to argue the jurisdictional issue in Montreal last June, will likely remain of interest to court watchers and law students for the criticism the trial judge directed at the CJC and its senior leadership, as well as at The Lawyer’s Daily.

Justice Noël criticized the CJC for failing to take “a good opportunity,” in his view, to bring the issue of the Federal Court’s jurisdiction closer to resolution in 2014 when it withdrew its appeal as part of settling the Douglas case — a move the council has said saved taxpayer money at the time.

“The issue that the CJC raises again in 2018 is largely the same,” Justice Noël observed. “It has generated enormous expenses and required the use of further judicial resources, and it has also delayed the judicial review proceedings,” he wrote. “Justice Mosley presided over a hearing that lasted about three days. He devoted more than 120 paragraphs of his reasons to the jurisdictional issue. This issue could have been settled by the Federal Court of Appeal as early as 2015.”

Norman Sabourin, CJC’s executive director and senior general counsel

Justice Noël also chastised what he saw as the attitude of disrespect the CJC showed toward the Federal Court and the parties to the judicial review (i.e. Justice Girouard and the Attorney General of Canada).

For example, in respect of the Rule 317 requirement that a decision maker file its record when a judicial review application is filed, an outraged Justice Noël deplored the fact that the council “simply sent the registrar an email informing her that the CJC was challenging the Court’s jurisdiction and specifying that all correspondence was to be addressed to the Right Honourable Richard Wagner, Chairperson of the CJC: an unprecedented act in such proceedings.”

The judge’s anger was not assuaged by the fact that the CJC’s counsel, Ronald Caza of Ottawa’s CazaSaikaley, subsequently wrote to the Federal Court’s administrator explaining the CJC’s position and citing a rule of the Federal Court.

“It is easy to interpret a rule literally as a basis for justifying conduct, but when the party doing this is made up of chief justices, there are grounds for concern,” Justice Noël emphasized.

“Basic judicial comity would have dictated first sending the Court a simple ‘without prejudice’ letter explaining that the CJC was challenging the Court’s jurisdiction and seeking a hearing on this point. The CJC’s conduct delayed the proceedings by two months.”

“There is more,” he said. He pointed out the CJC’s record was filed late and he granted counsel an extension of time to file.

He went on to state that “within 24 hours” of the CJC’s filing, The Lawyer’s Daily published a story (see Editors’ Note below), which included an explanation from Sabourin as to why the CJC was going to court to determine the question of the Federal Court’s jurisdiction to review the council’s conduct.

“It should be noted that the executive director of the CJC, an institution that claims to be a superior court, is pleading the Council’s cause in a public forum,” Justice Noël stressed. “The publication of such an article the day after the filing of the CJC’s record does not appear to be merely coincidental.”

The judge further faulted the same story — the “main thrust” of which he said was “to blame the Minister for not yet having asked Parliament to vote [on] the removal of the judge, without regard for the proceedings before the court.”

“However, no reference is made to the three orders rendered by the Court against the CJC and stating that the proceedings were being delayed by the CJC.”

Justice Noël was apparently referring to case management orders directed to counsel on the case, that were not flagged for media or public attention on the court’s home page. The judge also found the story incomplete as it was “silent” about the fact that the CJC’s inquiries into the judge’s conduct cumulatively lasted for about five years.

“That is not all,” he continued, referring to a second article in The Lawyer’s Daily, published June 22, 2018, and titled “Chief Justice Wagner calls for judicial discipline reforms as Ottawa drags heels on removing sidelined judge.” The story quoted comments made by the CJC’s chair at a wide-ranging Ottawa press conference, in which the top judge called on the Trudeau government to enact reforms to reduce the persistent lengthy delays and high costs of the federal judicial discipline process.

At that point last June — four months after a CJC majority had recommended Justice Girouard’s removal on the basis that “his integrity has been fatally compromised” and he could no longer function as a judge — the justice minister had yet to respond to recommendation, other than to say she would respond, in an unspecified way, “in due course.” Meanwhile, the Abitibi-Rouyn-Noranda-Témiscamingue region had been without one of its two full-time superior court judges for more than five years.

In response to questions from The Lawyer’s Daily, Chief Justice Wagner told reporters he would not comment on the specifics of the Girouard case. But he also acknowledged that the situation which resulted in the continuing lack of a judge in the Quebec region was unsatisfactory for the public, and that it pointed up why the CJC has long been pressing for legislation to help make the discipline process faster and more efficient. “It’s not satisfactory, and we made it very clear, and that’s why [the process] has to be changed,” he explained. “When there is a complaint against a judge it should be processed rapidly. It now is much too long. It’s too costly. And you could find yourself with a judge not sitting for years — not knowing what will happen to this individual, and the people not having a judge available to sit in one district, and it’s costing a lot of money. So, it doesn’t make any sense. …. We have to reform that process — even if [discipline] does not happen, hopefully, too often. ... We’re working on that. We keep the pressure, and we hope that reforms would be made.”

Chief Justice Richard Wagner

The Lawyer’s Daily story that was objected to by Justice Noël also quoted Chief Justice Wagner saying that when he raised the issue of persistent systemic problems in the judicial discipline process in a meeting with Wilson-Raybould, after he assumed the chairmanship of the CJC this year, “she was very sensitive to the issue. So, I’m still looking for reforms.”

Justice Noël commented that “all of this leads me to question whether the CJC was pressuring the Minister to proceed with Justice Girouard’s removal without regard for the judicial proceedings that are legitimately before this court.”

Justice Noël elaborated by referring back to his “few preliminary remarks” to counsel last June in open court, just before the case was to be argued. In relation to the same story, he disclosed (translation) “when I read the article from last Friday, when I reread it during the day on Saturday, I was … I thought about it. I am a judge, just a trial judge, nothing more and nothing less. But I know one thing, that in 16 years of practice, there is one thing that I have always held dear, it is the separation of the executive and the judiciary. It is something that is vitally important to our system. However, the chief justice, the chair of the Council, Judge Wagner, was quoted saying ‘not satisfactory’ — insatisfait — as shown between quotation marks in this article, that the report had not been transposed in a revocation request,” he said. “What I read in this article is that the Chief Justice, the chair of the Council, has asked the executive, or has criticized the executive, to submit a revocation application to the Parliament of Canada knowing that there are ongoing legal proceedings …

“Although my introductory remarks do not explore the file in detail, I am perfectly aware that I must raise this question, yes, as a judge, not as a Court of Appeal, and certainly not as a Supreme Court, and certainly not with the mindset of a Chief Justice, but because it is of great concern. I will not consider timeframes at this time. Who is to blame, that is not my job. In due time we will see just how far that will be taken. However, I wanted to make sure that, and I want to believe that, the Chief Justice of Canada, chair of the Council, has been misquoted, which would make it much easier for me to do my job as a trial judge.”

Justice Noël also asked Caza, the CJC’s counsel, “should I take it that this article tells the Attorney General of Canada ‘Ignore the legal proceedings submitted by Judge Girouard and you will have to go directly to Parliament to submit your application?’ ” Is that really what the Chief Justice of Canada had said? I doubt it. Tell me that the journalist had misinterpreted the statements of the Chief Justice and chair of the Council.”

Justice Noël noted in his judgment that on June 27 the CJC assured him in writing that “Justice Girouard’s file ‘has been and will be pleaded only by counsel for the Council and the same will be true before the Federal Court’ ” (emphasis in the original). “In the absence of evidence to the contrary, I must accept this response at face value,” the judge concluded. “I therefore presume that the CJC will henceforth limit itself to making its case before the courts.”

Asked for the council’s reaction to the judgment, Sabourin told The Lawyer’s Daily it “would not be helpful” to address the judge’s closing comments.

Speaking generally, he remarked, “I can only say that as the council’s spokesperson, it’s my job to present council’s position on matters of public interest, including judicial conduct, and our position is that we need to have in place a timely, a robust, [judicial discipline] process. Right now things bog down, in large part when judges, at public expense, drag out the proceedings before the courts for years. So, the council has always been very clear that we want to pursue reform. We want to have an efficient process in which Canadians have confidence.”

EDITORS’ NOTE: This story by The Lawyer’s Daily Ottawa bureau chief Cristin Schmitz reports comments by Justice Simon Noël about the latest two of at least a dozen stories she has written since 2013 about, or related to, the Girouard judicial discipline proceedings. The accuracy and independence of her reportage has not been challenged in that time. The Lawyer’s Daily stands by its ongoing coverage, which puts the public interest first and, we believe, gives our readership of lawyers, judges and others in the Canadian legal community the most extensive and in-depth coverage available of the multidimensional case, which raises (among other things) issues of: judicial independence; the constitutional order; fairness to judges and to litigants; delay and costly litigation at public expense; and the perceived need, within both the profession and the judiciary, for judicial discipline reform. The Lawyer’s Daily does not share the judge’s interpretations — nor agree with his characterizations — of the two stories dated May 25, 2018, and June 22, 2018, as expressed in comments he made without notice to our publication, which is a non-party, and without giving The Lawyer’s Daily an opportunity to address them.

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